Madras High Court
Ravi … vs The State Rep. By on 29 July, 2022
Crl.R.C.No.126 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 22.07.2022
Pronounced on : 29.07.2022
CORAM
THE HONOURABLE MR.JUSTICE SUNDER MOHAN
Criminal Revision Case No.126 of 2017
Ravi …Petitioner
Vs
The State rep. by
Inspector of Police,
Thiyagadurgam Police Station,
(Crime No.68 of 2005) …Respondent
PRAYER : Criminal Revision petition filed under Sections 397 and 401
Criminal Procedure Code, to set aside the judgement dated 24.11.2016 in
Criminal Appeal No.13 of 2016 on the file of the learned 3 rd Additional
Sessions Judge, Kallakurichi confirming the conviction and sentence passed
by the learned Assistant Sessions Judge, Kallakurichi in Sessions Case
No.332 of 2008 dated 29.02.2016.
For Petitioner : Mr.N.Suresh
For Respondent : Mr.S.Sugendran
Additional Public Prosecutor
Page 1 of 24
https://www.mhc.tn.gov.in/judis
Crl.R.C.No.126 of 2017
ORDER
This revision challenges the Judgment passed by learned III Additional Sessions Judge, Kallakurichi in Crl.A.No.13 of 2016 dated 24.11.2016 confirming the Judgment of the learned Assistant Sessions Judge, Kallakurichi in Sessions Case No.332 of 2008 dated 29.02.2016. The trial Court convicted the petitioner for the offence under Section 376 IPC and sentenced him to undergo 7 years RI and to pay fine of Rs.1000/- in default to suffer 3 months RI; and for the offence under Section 417 IPC and sentenced him to undergo Imprisonment for 1 year RI and also to pay a compensation of Rs.5,00,000/- to the victim for her physical and mental sufferings.
2.The case of the prosecution is that the Victim P.W.1 and the petitioner were in love with each other for two years prior to 05.03.2005. They both belonged to the same village and the petitioner had sexual intercourse with the victim on several occasions by making a promise to marry her. The victim on becoming pregnant informed the petitioner and he replied that he would consult his parents and then would marry her. Meanwhile, the parents of the petitioner started making arrangements for getting the petitioner married to Page 2 of 24 https://www.mhc.tn.gov.in/judis Crl.R.C.No.126 of 2017 another girl and on 05.03.2005 when the Victim went to the house of the petitioner, his parents and his brother, abused her.
3.The prosecution examined nine witnesses and marked Ex.P1 to Ex.P.15 to prove the charges against the accused. The petitioner was tried along with his mother and brother. The mother and brother were charged for the offence under Section 4 of Tamil Nadu Prohibition of Women Harassment Act 2002.
4.The trial Court convicted the petitioner for the offences under Sections 417 and 376 IPC and sentenced to imprisonment as stated earlier. The trial Court acquitted the remaining two accused of the offence under Section 4 of Tamil Nadu Prohibition Women Harassment Act. The Appellate Court confirmed the finding of guilt and sentence imposed by the trial Court.
5.Heard Mr.N.Suresh, learned counsel for the petitioner and Mr.S.Sugendran, Additional Public Prosecutor for respondent.
6.Mr.N.Suresh, the learned counsel for the petitioner submitted that the evidence of the victim namely P.W.1 would suggest that the petitioner and the Page 3 of 24 https://www.mhc.tn.gov.in/judis Crl.R.C.No.126 of 2017 victim had consensual relationship and there is no evidence to suggest that the petitioner had committed rape on the victim. The learned counsel also submitted that the petitioner did not commit the offence under Section 417 of IPC, as he had no intention to cheat the victim and he had subsequently married the victim. Initially, he could not get married for reasons and circumstances which were beyond his control. In any event, it would at the worst amount to breach of promise and not cheating. The learned counsel for the petitioner submitted that the victim had voluntarily consented to sexual intercourse and the consent was neither due to fear nor misconception of fact and hence it was a valid consent. Hence, he submitted that the offence under Section 376 IPC would not be attracted. The learned counsel for the petitioner relied upon the following decisions in support of his submissions: -
(i) Uday vs. State of Karnataka reported in 2003 (4) SCC 46.
(ii) Deelip Singh @ Dilip Kumar Vs. State of Bihar reported in 2005(1) SCC 88.
(iii) Deepak Gulati vs. State of Haryana reported in 2013 (7) SCC 675.
(iv) Sam vs State rep by the Inspector of Police, Coimbatore, reported in 2016(4) MLJ (Crl) 558.Page 4 of 24
https://www.mhc.tn.gov.in/judis Crl.R.C.No.126 of 2017
(v) Pramod Suryabhan Pawar vs. The State of Maharashtra and Another reported in (2019) 9 SCC 608.
(vi) Thiruvasagam vs. State by Inspector of Police, All Women Police Station, Ariyalur reported in CDJ 2020 MHC 4350.
(vii) Vengateshwaran vs the State represented by Inspector of Police,Attur Salem reported in CDJ 2022 MHC 049.
7.Mr.S.Sugendran, learned Additional Public Prosecutor submitted that the findings of the Courts below do not suffer from any infirmity so as to warrant interference by this Court in a Revision; that the petitioner had married another girl, which would show that he had no intention to marry the victim and hence prayed for dismissal of the revision.
8.In order to appreciate the rival submissions, we perused the evidence of the victim and the findings of Courts below. It is seen from her evidence that victim had regular physical relationship with the petitioner pursuant to a love affair; that the petitioner had induced her to sexual intercourse by making a promise that he would marry her; that she became pregnant and when she requested the petitioner to marry her, he along with his relatives abused her Page 5 of 24 https://www.mhc.tn.gov.in/judis Crl.R.C.No.126 of 2017 and that she gave a complaint on 05.03.2005 to the respondent stating that the petitioner refused to marry her; that after the complaint was lodged the petitioner married her in a temple and lived with her for 15 days and that thereafter the petitioner abandoned the victim. After that, the victim made a representation before the respondent and the complaint was activated once again. In the year 2006, the victim once again reconciled with the petitioner and their marriage was registered. The marriage registration certificate was marked as Ex.P.5. A daughter was born to her on 04.11.2005. The victim also deposed that the petitioner thereafter married another girl and refused to live with her.
9. Both the Courts below on appreciation of the facts and the evidence of the victim rendered a finding that the petitioner made a false promise that he would marry her. The Courts below also found that a false promise to marry would amount to misconception of fact thereby, vitiating the consent within the meaning of Section 90 of IPC. The Courts below also found that the marriage of the petitioner with the victim subsequent to the FIR, was not a genuine attempt made by the petitioner and the marriage was only done to escape from the criminal prosecution. The fact that the petitioner had married Page 6 of 24 https://www.mhc.tn.gov.in/judis Crl.R.C.No.126 of 2017 another girl also weighed with the Courts below while convicting the petitioner for the offences under Sections 376 and 417 of IPC.
10. During the course of hearing, the learned counsel for the petitioner filed an affidavit of the victim which is extracted hereunder: -
“...
2. I submit that I gave complaint in Crime No.68 of 2005, Thiyagadurgam Police Station and the same was registered under Sections 417 and 376 IPC. I submit that myself and Ravi/1st accused loved each other and I was under
the apprehension that the accused may not marry me, although we had physical relationship with each other. Hence, only under that circumstance I gave complaint.
3. I submit that after the case was registered the accused/Ravi married me in Thiyagadurgam Mariamman Temple immediately after the complaint. I have also deposed about our marriage before the Court below during the evidence stage. Out of our wedlock a girl child was born on 04.11.2005. I submit that we are continuously living together and in as much as the accused/Ravi has married me and we Page 7 of 24 https://www.mhc.tn.gov.in/judis Crl.R.C.No.126 of 2017 are living under one roof as husband and wife along with the child, this Hon'ble Court may be pleased to consider the above circumstance and may be pleased to pass suitable orders, considering the fact that I have no grievance against the accused.
4.I submit that myself and the accused/Ravi are living in one roof in the same village and hence if any adverse order is passed against the accused again I will be put to greatest hardship as I will be left alone without any support from any one. Hence, I pray that in the facts and circumstances of the case a fair and just order may be passed and pass such other orders as this Hon'ble Court may deem fit in the circumstance of the case.”
11.In order to ascertain the veracity of this Affidavit this Court called the victim in person and enquired her. She would say that she is now living with the petitioner. Further, she would also say that the daughter, born to them out of the wedlock, is being taken care of jointly by the petitioner and the victim.
12.Be that as it may, the question before us is whether the petitioner has induced the victim by making a false promise to marry her and if so whether Page 8 of 24 https://www.mhc.tn.gov.in/judis Crl.R.C.No.126 of 2017 that would vitiate the consent given by her, as falling within the expression “misconception of fact” under Section 90 of IPC. Section 90 of IPC reads as follows:-
“...
90. Consent known to be given under fear or misconception.— A consent is not such a consent as it intended by any section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception; or Consent of insane person.—if the consent is given by a person who, from unsoundness of mind, or intoxication, is unable to understand the nature and consequence of that to which he gives his consent; or Consent of child.—unless the contrary appears from the context, if the consent is given by a person who is under twelve years of age.”
13.Thus, a consent as is intended in any Section of IPC would not to be a consent if the same was given under fear of injury or under a misconception of fact and if the person doing the act knows or as reason to believe that the consent was given in consequence of such fear or misconception. In the instant case, admittedly the consent was not vitiated due to fear of injury. Page 9 of 24 https://www.mhc.tn.gov.in/judis Crl.R.C.No.126 of 2017 Therefore, it has to be examined whether the consent of the victim was under
a misconception of fact and the petitioner knew that she gave the consent in consequence of such misconception of fact. Therefore, it is not only the misconception of fact of the victim that is relevant but also the fact that the doer had knowledge about the fact that the victim had given consent only under such misconception. We may also see how free consent has been defined under the Indian Contract Act. Section 14 of the Indian Contract Act is extracted here for easy reference:-
Section 14 in The Indian Contract Act, 1872
14. ‘Free consent’ defined.—Consent is said to be free when it is not caused by— —Consent is said to be free when it is not caused by—"
(1) coercion, as defined in section 15, or (2) undue influence, as defined in section 16, or (3) fraud, as defined in section 17, or (4) misrepresentation, as defined in section 18, or (5) mistake, subject to the provisions of sections 20, 21 and 22. Consent is said to be so caused when it would not have been given but for the existence of such coercion, undue influence, fraud, misrepresentation or mistake.” Thus unlike Section 90 of IPC, the consent under the Contract Act is not free if it is caused by coercion, undue influence, fraud, misrepresentation and Page 10 of 24 https://www.mhc.tn.gov.in/judis Crl.R.C.No.126 of 2017 mistake. However, under the Penal Law, consent would not be vitiated on any of the above grounds but is vitiated only when it is given under fear of injury or under misconception of fact or if it is of insane or intoxicated persons. The question as to whether a false promise to marry which in effect is a misrepresentation\false representation, would vitiate the consent in an offence of rape came up for consideration before the Hon'ble Apex Court in Uday Vs State of Karnataka reported in 2003 (4) SCC 46. The Hon'ble Apex Court after considering the judgments of the various High Courts was pleased to hold as follows:
“…
21.It therefore, appears that the consensus of judicial opinion is in favour of the view that the consent given by the victim to sexual intercourse with a person with whom she is deeply in love on a promise that he would marry her on a later date, cannot be said to be given under a misconception of fact. A false promise is not a fact within the meaning of the Code. We are inclined to agree with this view, but we must add that there is no strait jacket formula for determining whether consent given by the victim to sexual intercourse is voluntary, or whether it is given under a misconception of fact. In the ultimate analysis, the tests laid down by the Courts provide at best guidance to the judicial mind while considering a Page 11 of 24 https://www.mhc.tn.gov.in/judis Crl.R.C.No.126 of 2017 question of consent, but the Court must, in each case, consider the evidence before it and the surrounding circumstances, before reaching a conclusion, because each case has its own peculiar facts which may have a bearing on the question whether the consent was voluntary, or was given under a misconception of fact. It must also weigh the evidence keeping in view the fact that the burden is on the prosecution to prove each and every ingredient of the offence, absence of consent being one of them.”
14.TheHon'ble Apex Court had occasion to consider this question once again in Deelip Singh @ Dilip Kumar Vs. State of Bihar reported in (2005) 1 SCC 88. The Hon'ble Apex Court took a slightly different view from the one taken in Uday Vs. State of Karnataka (cited supra). In this case the Hon'ble Apex Court held that for the purpose of IPC, Section 90 cannot be construed as an exhaustive definition and the normal connotation and concept of consent is not to be excluded. The relevant portions are extracted here under:-
“...
20. Section 90 cannot, however be construed as an exhaustive definition of consent for the purposes of the Indian Penal Code.
The normal connotation and concept of 'consent' is not intended to be excluded. Various decisions of the High Court and of this Court have not merely gone by the language of Section 90, but travelled Page 12 of 24 https://www.mhc.tn.gov.in/judis Crl.R.C.No.126 of 2017 a wider field, guided by the etymology of the word 'consent'.” After observing so, the Hon'ble Apex Court interpreted the phraseology of Section 90 of the IPC by considering the Judgments of the various Courts including that of this Court in Re N.Jaladu and another reported in 1911 SCC Online Mad 3: AIR 1914 Mad 49.With regard to the observations of the Hon'ble Apex Court made in paragraph 21 of Uday's case (cited supra) which is extracted above, the Hon'ble Apex Court held as follows:-
“28. The first two sentences in the above passage need some explanation. While we reiterate that a promise to marry without anything more will not give rise to 'misconception of fact' within the meaning of Section 90, it needs to be clarified that a representation deliberately made by the accused with a view to elicit the assent of the victim without having the intention or inclination to marry her, will vitiate the consent.(Emphasis supplied) If on the facts it is established that at the very inception of the making of promise, the accused did not really entertain the intention of marrying her and the promise to marry held out by him was a mere hoax, the consent ostensibly given by the victim will be of no avail to the accused to exculpate him from the ambit of Section 375 Clause secondly. This is what in fact was stressed by the Division Bench of the Calcutta High Court in the case of Jayanti Rani Panda, supra which was approvingly referred to in Uday's case, (supra). The Page 13 of 24 https://www.mhc.tn.gov.in/judis Crl.R.C.No.126 of 2017 Calcutta High Court rightly qualified the proposition which it stated earlier by adding the qualification at the end--"unless the Court can be assured that from the very inception, the accused never really intended to marry her" (Emphasis supplied). In the next para, the High Court referred to the vintage decision of the Chancery Court which laid down that a misstatement of the intention of the defendant in doing a particular act would tantamount to a misstatement of fact and an action of deceit can be founded on it. This is also the view taken by the Division Bench of the Madras High Court in Jaladu's case, supra (vide passage quoted supra). (Emphasis supplied) By making the solitary observation that "a false promise is not a fact within the meaning of the Code", it cannot be said that this Court has laid down the law differently. The observations following the aforesaid sentence are also equally important. The Court was cautious enough to add a qualification that no strait jacket formula could be evolved for determining whether the consent was given under a misconception of fact. Reading the judgment in Uday's case as a whole, we do not understand the Court laying down a broad proposition that a promise to marry could never amount to a misconception of fact. That is not, in our understanding, the ratio of the decision. In fact, there was a specific finding in that case that initially the accused's intention to marry cannot be ruled out.Page 14 of 24
https://www.mhc.tn.gov.in/judis Crl.R.C.No.126 of 2017
29.Having discussed the legal aspects bearing on the interpretation of the term 'consent' with special reference to Section 90 IPC, we must now turn our attention to the factual aspects of the case related to consent.”
15.The Hon'ble Apex Court in Deelip Singh's case (cited supra) made a specific reference to the Judgement of this Court in Re N.Jaladu and another reported in (AIR 1914 Mad 49 : 1911 SCC online Mad 3) and observed it to be an illuminating decision made on the scope and amplitude of the expression “misconception of fact”. In Re N.Jaladu's case this Court held that misconception of fact is broad enough to include all cases where consent is obtained by misrepresentation and that the misrepresentation should be regarded as leading to a misconception of fact. The relevant paragraphs are extracted hereunder:-
“...
2.But it appears that accused 2 obtained the consent of the girl's guardian by falsely representing that the object of taking her was only to gather presents for a festival. The question is whether in these circumstances it can be said that the guardian gave her consent to the taking of the girl within the meaning of S.61, I.P.C.
S.90, I.P.C., provides: “A consent is not such a consent as is intended by any section of this Code, if the consent is given by a person under fear or injury or under a misconception of fact, and Page 15 of 24 https://www.mhc.tn.gov.in/judis Crl.R.C.No.126 of 2017 if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception.” We are of opinion that the expression under a misconception of fact” is broad enough to include all cases where the consent is obtained by misrepresentation; the misrepresentation should be regarded as leading to a misconception of the facts with reference to which the consent is given...”
16.In subsequent judgments Court in State of Uttar Pradesh vs Naushad reported in (2013) 16 SCC 651 and in Deepak Gulati vs. State of Haryana vs reported in 2013 (7) SCC 675 .The Hon'ble Apex followed the view taken in Deelip Singh @ Dilip Kumar Vs. State of Bihar's case.
17.The Hon'ble Apex Court in Pramod Suryabhan Pawar vs. The State of Maharashtra and another reported in 2019 (3) SCC 908 summed up the legal position with regard to consent of women in respect of the offence of rape. The relevant portions are as follows:-
“…
18.To summarize the legal position that emerges from the above cases, the “consent” of a women with respect to Section 375 must involve an active and reasoned deliberation towards the proposed act. To establish whether the “consent” was vitiated Page 16 of 24 https://www.mhc.tn.gov.in/judis Crl.R.C.No.126 of 2017 by a misconception of fact” arising out of promise to marry, two propositions must be established. The promise of marriage must have been a false promise given in bad faith and with no intention of being adhered to at the time it was given. The false promise itself must be of immediate relevance, or bear a direct nexus to the women’s decision to engage in the sexual act.
18.The Hon'ble Apex Court in Maheshwar Tigga vs State of Jharkhand reported in (2020) 10 SCC 108 held that the misconception of fact has to be proximate to the time of occurrence and cannot be spread over a considerable period of time. The relevant portions are extracted hereunder:-
“...
14.Under Section 90 IPC, a consent given under a misconception of fact is not consent in the eye of the law. But the misconception of fact has to be in proximity of time of the occurrence and cannot be spread over a period of four years. It hardly needs any elaboration that the consent by the appellant was a conscious and informed choice made by her after due deliberation, it being spread over a long period of time coupled with a conscious positive action not to protest. The prosecutrix in her letters to the appellant also mentions that there would Page 17 of 24 https://www.mhc.tn.gov.in/judis Crl.R.C.No.126 of 2017 often be quarrels at her home with her family members with regard to the relationship and beatings given to her."
19. This Court in Thiruvasagam vs State by Inspector of Police, All Women Police Station, Ariyalur reported in CDJ 2020 MHC 4350. (ii) Vengateshwaran vs.The State represented by Inspector of Police, Attur, Salem reported in CDJ 2022 MHC 049 by applying the above principles acquitted the accused by finding that a distinction must be made between breach of promise and a false promise.
20.Thus from the above Judgments, we can see that though, the Hon'ble Apex Court in Deelip Singh's case (cited supra) felt that Section 90 cannot be construed as exhaustive definition of consent for the purpose of IPC, however, in the later portions of the said Judgment discussed the legal aspects bearing on the interpretation of the term consent with reference to Section 90 IPC. The subsequent judgments of the Hon’ble Apex Court also considered the validity of the consent of the victim only with reference to Section 90 of IPC. The Hon'ble Apex Court further held that misrepresentation or false promise made in certain cases may be regarded as leading to misconception of fact. In Pramod's case the Hon'ble Supreme Court summed up legal principles which Page 18 of 24 https://www.mhc.tn.gov.in/judis Crl.R.C.No.126 of 2017 we have extracted in the earlier part of this judgment. In that case the Hon'ble Apex Court held that a consent to be vitiated because of a false promise to marry two conditions have to satisfied. Firstly, the promise of marriage must have been a false promise given in bad faith with no intention of fulfilling it. Secondly, the false promise must bear a direct nexus to the women’s decision to engage in the sexual act. In Maheshwar Tigga's case (cited supra), the Hon'ble Apex Court held that the misconception of fact has to be proximate to the time of occurrence. If the occurrence is spread over a long period of time, then the consent cannot be said to have been obtained by misconception of fact.
21. Applying the above said legal principles to the facts of the instance case, we find that the petitioner and the victim were having a continuous relationship on account of a love affair and the consent of the victim was not due to the fact of the alleged misrepresentation made by the petitioner. We would like to extract the relevant portions of the deposition of victim during cross examination:
“/// vdf;Fk;. 2005 Mk; Mz;Lf;F Kd;g[ xUtUlkhf. vdf;Fk; utp vd;gtUf;Fk; gHf;fk; Vw;gl;lJ/ xUtUlkhf ,UtUk; fhjypj;njhk;/ Page 19 of 24 https://www.mhc.tn.gov.in/judis Crl.R.C.No.126 of 2017 mjd;gpwF. vdf;Fk; mtUf;Fk;; ,ilna fUj;JntWghL Vw;gl;lJ///” “/// “vd;Dld; 1k; vjphp thH;tjw;F vd; khkdhh; uhK tplkhl;nld; vd;fpwhh;///” “/// “ehDk;. 1k; vjphpa[k; fhjypj;j tprak; 2. 3 vjpfSf;F bjhpahJ vd;why; rhpjhd;/”
22. The above evidence clearly establishes that there was a love affair between the petitioner and the victim. The prosecution has failed to establish that the petitioner had no intention to marry even at the very inception and he made a false promise to his knowledge. Further on facts we find that this not a case were the alleged false promise was the immediate cause for the victim to give consent for the sexual act. We also find that the affair had continued for a considerable period of time which also confirms that the consent was not predominantly due to the alleged false promise to marry. The events that took place after the registration of FIR and before the victim gave evidence namely that the petitioner married the victim and subsequently registered the marriage would also suggest that the prosecution's case that the accused had no intention to marry even at the very inception when he made the false promise would not be correct. The evidence of the victim only suggests that the conduct of the petitioner only amounted to a breach of promise even if the Page 20 of 24 https://www.mhc.tn.gov.in/judis Crl.R.C.No.126 of 2017 victim’s version as found in her deposition is accepted to be true.
23. We also find that for the aforesaid reasons, the petitioner is also not guilty of the offence under Section 417 IPC as the prosecution has not established that he practiced deception even at the inception to attract the offence of cheating.
24. Therefore, we are of the view that the prosecution has failed to establish the offences of rape under Section 376 IPC and cheating under Section 417 of IPC against the petitioner. We also record the fact that the victim is now living with the petitioner.
25. For the above reasons, we are of the view that the above revision deserves to be allowed. The Judgment passed by the learned 3rd Additional Sessions Judge, Kallakurichi in Crl.A.No.13 of 2016 in 24.11.2016 is set aside and petitioner is set at liberty. Hence, the Criminal Revision is allowed. The Bail bond if any executed by the petitioner shall stand cancelled. Page 21 of 24 https://www.mhc.tn.gov.in/judis Crl.R.C.No.126 of 2017 29.07.2022 Index : Yes/No Internet : Yes/No Speaking Order/Non Speaking Order dk To
1.III Additional Sessions Judge, Kallakurichi
2. The Assistant Sessions Judge, Kallakurichi
3.The Inspector of Police, Thiyagadurgam Police Station,
4.The Public Prosecutor High Court of Madras, Chennai – 600 104.
Page 22 of 24 https://www.mhc.tn.gov.in/judis Crl.R.C.No.126 of 2017 SUNDER MOHAN, J.
dk Pre-delivery order in Crl.R.C.No.126 of 2017 Page 23 of 24 https://www.mhc.tn.gov.in/judis Crl.R.C.No.126 of 2017 29.07.2022 Page 24 of 24 https://www.mhc.tn.gov.in/judis